Public Administrators’ Liability for Constitutional Torts
There is often a notable gap between formal constitutional requirements and actual administrative practice. Constitutional law may be unclear or poorly communicated to administrators. As already noted, sometimes it is highly subjective or requires an elaborate balancing of multiple factors. Specific constraints may seem counterintuitive to administrators or impractical due to scarce resources or lack of time. They may also run counter to deep-seated administrative and organizational values. Furthermore, individuals whose constitutional rights are violated may lack the incentive or resources to sue the government or its employees for redress. In a series of decisions crystallizing in the 1980s, the Supreme Court sought to protect individuals’ constitutional rights in their encounters with public administrators by invigorating the law of constitutional torts (i.e., injuries to constitutional rights). The Court made it far easier for individuals to sue most public administrators personally in federal court for money damages for violations of their constitutional rights. In terms of legal doctrine, the Court changed the presumption that public employees and officials are absolutely immune from civil suits for money damages (meaning they could not be sued for their constitutional torts) to one that affords them only a qualified immunity from such suits. The Court reasoned that making it easier to bring constitutional tort suits serves to deter violations of constitutional law as well as to compensate victims. The current standard for qualified immunity requires public administrators, at all levels of government, to have reasonable knowledge of constitutional law and to factor it into decisionmaking. Since 1982, most public administrators in the United States have been potentially personally liable for money damages for conduct violating “clearly established [federal] statutory or constitutional rights of which a reasonable person would have known” ( Harlow v. Fitzgerald 1982, 818). This standard expands the requirements of administrators’ job competence to include constitutional law. In the Supreme Court’s words, “A reasonably competent public official should know the law governing his conduct” ( Harlow v. Fitzgerald 1982, 819). Suits may be for punitive, exemplary, and compensatory damages ( Smith v. Wade 1983). The major exception is that public administrators cannot be sued for constitutional torts committed while engaging in adjudicatory or legislative functions. There are also some technical differences in how local, state, and federal employees may be sued. However, the vast majority of public administrators are subject to suit, and constitutional torts produce considerable litigation. Local governments and their agencies are also liable to such suits for compensatory damages when their policies directly cause violations of individuals’ constitutional rights ( Pembaur v. City of Cincinnati 1986). Under limited circumstances, cities and counties can also be sued for failure to train their employees to protect individuals’ constitutional rights ( City of Canton v. Harris 1989). Local governments cannot be sued for punitive damages in constitutional tort cases. It should be emphasized that the “clearly established” constitutional law a reasonable administrator should know is not synonymous with the latest judicial precedent on some matter. In Hope v. Pelzer (2002, 741), the Supreme Court emphasized that “officials can be on notice that their conduct violates established law even in novel factual circumstances.” Conduct may be obviously unconstitutional even though it has never been the subject of litigation. The broad purpose of qualified immunity is to encourage public administrators to follow the case law and be responsive to the judiciary’s constitutional reasoning and values. Qualified immunity is designed to give federal judges a greater role in defining appropriate public administrative behavior. The courts labor hard to give substance to constitutional rights. They do not want their decisions to be hollow. Knowing that they face personal suits for constitutional torts gives public administrators a strong incentive to think twice before taking an action that might tread on someone’s constitutionally protected rights. Relatively speaking, qualified immunity protects the public interest in allowing public administrators to act without fear of frivolous or other unwarranted lawsuits. Depending on the circumstances, private individuals engaged in state action may either have no immunity at all, meaning they are vulnerable to suit regardless of whether the constitutional law was clearly established or likely to be known by a reasonable person; alternatively, they may have qualified immunity or simply not be subject to such suits ( Richardson v. McKnight 1997; Filarsky v. Delia 2012; Minneci v. Pollard 2012).
- What is the current standard for public administrators’ potential liability for committing constitutional torts? If you could change it, would you? If not, why, and if so, how?
Rosenbloom, David. (2014). Administrative Law for Public Managers. Second Edition. Page 47
